In Canada, copyright registrations comes cheap, very cheap. Nevertheless,.businesses and creators seldom register their rights, at least until they’re faced with a known infringer and want to sue. A recent Federal Court shows us this may not be wisest course of action when it comes to adequately protecting one’s I.P. rights.
The case at issue is that of Patterned Concrete Mississauga Inc. v. Bomanite Toronto Ltd. (2021 CF 314), a case involving a copyright owner faced with copying of some of its business forms, by a competitor called Bomanite Toronto Ltd. Faced with a clear case of copying, the copyright owner sued for infringement and eventually won a judgment awarding $8,000 in statutory damages, for each work that had been copied.
In addition to the plaintiff managing to secure such a judgment through summary proceedings, this case is also a good example of how proper copyright registration may well play a role when attempting to sue for infringement.
Here, even though PCM had done the right thing by obtaining copyrights registration certificates, prior to actually suing, it had done so around the time it first contacted the eventual defendant Bomanite. Under such circumstances, courts will sometimes question the value of the registrations at issue, given that they may have been obtained with the specific purpose of suing a specific infringer, as opposed to being obtained in the normal course of protecting the business’ IP rights, for no particular other reason.
Fortunately for the plaintiff, here the defendant failed to properly argue against existence of the copyrights at issue and/or ownership of those copyrights. Had the defendant done so, the court may have been moved to set aside the registrations, something that may well have resulted in throwing out the whole suit. In the absence of any contradictory evidence, the court allowed the registration certificates to stand.
This recent case serves as a good reminder that creators and businesses may want to revisit their habit of only registering copyrights, once an infringement problem occurs. A much better approach may be to register copyrights (over important works, at least) either as they are created or, at the very least, on a on-going basis, for example by doing a periodic sweep through the business’ most relevant and/or valuable creations, and registering copyrights thereon.
Copyright registration, in Canada, costs next to nothing and can be done through a process that requires minimal resources and information.